Favorite Market Store d/b/a F.M. Service Corporation ("Favorite Market") appeals from a judgment entered by the Etowah Circuit Court awarding Doyce Waldrop $6,500 in damages in his action alleging malicious prosecution. We reverse and remand.
Waldrop filed this action in the Etowah District Court asserting a single claim of malicious prosecution in connection with a
In the early morning hours of June 3, 2001, Diana Ainsworth was working as a cashier at a Favorite Market convenience store in Guntersville. Between 1:00 a.m. and 2:30 a.m. on June 3, Ainsworth noticed that someone had pumped $5.00 worth of gasoline at one of the store's pumps, but had not paid. Ainsworth saw a white male leave the store, get in the vehicle at the pump in question, and drive away without paying for the gasoline. Ainsworth observed that the vehicle was a mid-sized, white, four-door car, and she wrote down the tag number of the car. Ainsworth testified that she prepared an internal company incident report and attached the receipt for the stolen gasoline to that report.
The Guntersville police presented the information from Ainsworth to a magistrate and obtained a warrant for Waldrop's arrest. Approximately two weeks later, the Guntersville police contacted Waldrop, who turned himself in. For reasons not clear from the record, Waldrop was never brought before Ainsworth for identification.
No representative of Favorite Market appeared at Waldrop's preliminary hearing, and the City prosecutor dismissed the criminal case against Waldrop. Ainsworth testified that she did not attend the hearing because she did not receive notice of the hearing.
Favorite Market contends that the trial court erred by failing to enter a judgment as a matter of law in its favor because, it contends, Waldrop did not present substantial evidence indicating that Favorite Market acted without probable cause or that Favorite Market acted with malice.
When reviewing a ruling on a motion for a JML, this court uses the same standard the trial court used initially in granting or denying the JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). The nonmovant must present "substantial evidence" in order to withstand a motion for a JML. See Ala. Code 1975, § 12-21-12; and West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a ruling on a motion for a JML, this court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the trier of fact would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996).
The elements of a claim of malicious prosecution are: (1) institution of a prior judicial proceeding by the present defendant, (2) a lack of probable cause, (3) malice on the defendant's part, (4) termination of the prior proceeding in favor of the present plaintiff, and (5) damage. Delchamps, Inc. v. Bryant, 738 So.2d 824, 831-33 (Ala.1999). In this case, only the second and third elements—lack of probable cause and malice—are at issue.
Malicious-prosecution actions are disfavored in the law. Cutts v. American United Life Ins. Co., 505 So.2d 1211, 1214 (Ala.1987). Our Supreme Court has stated:
To prevail, Waldrop must present substantial evidence indicating that Favorite Market lacked probable cause when it initiated the prior proceeding. Probable cause is defined as "`such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.'" Delchamps, Inc. v. Morgan, 601 So.2d at 445 (quoting Birwood Paper Co. v. Damsky, 285 Ala. 127, 134, 229 So.2d 514, 521 (1969)). The question in this case therefore is not whether Waldrop was in fact guilty of theft, but whether Ainsworth saw, or in the exercise of ordinary caution and prudence, thought she saw, the tag number that she reported to the police. Morgan, 601 So.2d at 445.
In Morgan, a store employee had probable cause to arrest a shopper for theft of cigarettes based on a visible outline of a pack of cigarettes in the shopper's pocket. Even though it was subsequently shown that the outline was that of a partial pack that was not stolen, the employee's honest and strong suspicion was sufficient to establish probable cause. Morgan, 601 So.2d at 445. In Bryant, there was probable cause to arrest a man for shoplifting based on the erroneous identification of his picture by store employees. In Lindsey v. Camelot Music, Inc., 628 So.2d 314 (Ala. 1993), a summary judgment for the defendant was affirmed because the store employee had probable cause to believe that a teenager was aiding and abetting theft by deliberately blocking the employee's view of another teenager who was shoplifting cassette tapes. The plaintiff's acquittal in the prior criminal proceeding and his general denial did not create a jury issue as to the existence of probable cause.
Similarly, in this case, we conclude that there is not substantial evidence indicating that, at the time she initially contacted the police, Ainsworth did not have the requisite probable cause.
Favorite Market also argues that the record does not support a finding that it acted with the malice required to establish a claim of malicious prosecution. While we find Favorite Market's argument to be meritorious, we pretermit any further discussion of it in light of the dispositive nature of the probable-cause issue discussed above.
We reverse the judgment of the trial court and remand the cause for the entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
CRAWLEY, P.J., and THOMPSON and BRYAN, JJ., concur.
PITTMAN, J., concurs in the result, without writing.